Illinois Cases
Civil - Abuse And Neglect/ Termination Of Parental Rights / Guardianship 1st Dist.
In re Mark W., a Minor, No. 1-05-3370 (June 19, 2008) 4th div. (Neville) Affirmed.
Evidence that disabled adult mother of minor was unfit within meaning of Adoption Act by virtue of her failure to maintain a reasonable degree of care and concern and failure to make reasonable progress toward the return of her child is not against the manifest weight of the evidence; because mother, and her guardian were uncooperative, mother's guardian refused to sign consents for State to obtain her progress at therapy, mother and her guardian took advantage of only one fourth of the opportunities given them for visitation, and mother demonstrated no bond with child. Further, mother's guardian, without court order providing for it, was not child's custodian pursuant to provisions of Section 11a-17 of Probate Act, and was not entitled to temporary custody hearing. In addition, considering testimony of child's therapist that it would be detrimental for him to testify, trial court did not abuse its discretion when it refused to allow mother's guardian to call him as wit ness.
Civil - Child Custody/ Attorneys' Fees / Child Representative 1st Dist.
In re Marriage of Thompson, No. 1-06-0472 (June 23, 2008) 1st div. (Cahill) (GARCIA, dissent) Reversed and remanded.
After trial court discharged child representative, and father asked for court to conduct evidentiary hearing on representative's final fee petition, trial court erred when it allowed child representative fees without first conducting an evidentiary hearing.
Monday, June 30, 2008
Thursday, June 19, 2008
caselaw update
Civil - Child Support/ Garnishment / Judgments 3rd Dist.
In re Marriage of Takata, No. 3-07-0175 (June 12, 2008) Peoria County (O'brien) Reversed and remanded.
Trial court erred when it denied motion for turnover order of father's current wife's 401K account to satisfy judgment against father for child support arrearage. Funds in account are marital property, having been accumulated during marriage between father and his current wife; and are not exempt from collection for child support judgment. (Appellee's failed to file briefs)
In re Marriage of Takata, No. 3-07-0175 (June 12, 2008) Peoria County (O'brien) Reversed and remanded.
Trial court erred when it denied motion for turnover order of father's current wife's 401K account to satisfy judgment against father for child support arrearage. Funds in account are marital property, having been accumulated during marriage between father and his current wife; and are not exempt from collection for child support judgment. (Appellee's failed to file briefs)
Pregnancy and delivery expenses
Pregnancy and delivery expenses
Senate Bill 2594 (Millner, R-Carol Stream; Ramey, R-Carol Stream) amends the Illinois Parentage Act to allow the court to order either parent to pay the reasonable expenses related to the mother?s pregnancy and delivery incurred by either parent or the Department of Healthcare and Family Services. Allows such actions to be filed within two years after a judicial determination of parentage. Current law is shorter; two years within the date of the child?s birth. Sent to the Governor.
Senate Bill 2594 (Millner, R-Carol Stream; Ramey, R-Carol Stream) amends the Illinois Parentage Act to allow the court to order either parent to pay the reasonable expenses related to the mother?s pregnancy and delivery incurred by either parent or the Department of Healthcare and Family Services. Allows such actions to be filed within two years after a judicial determination of parentage. Current law is shorter; two years within the date of the child?s birth. Sent to the Governor.
Thursday, June 12, 2008
new family law task force
In an effort to improve the illinois divorce proccess there has been a resolution to create a task force to study the process.
Family-Law Study
House Resolution 1101 Illinois Family-Law Task Force. House Resolution 1101 (Madigan, D-Chicago; Fritchey, D-Chicago) creates a legislative task force to study and recommend changes in the Illinois Marriage and Dissolution of Marriage Act. The House has passed this resolution; no further action is required for this resolution to take effect. Hearings all over the state are anticipated. Passed by both chambers.
Family-Law Study
House Resolution 1101 Illinois Family-Law Task Force. House Resolution 1101 (Madigan, D-Chicago; Fritchey, D-Chicago) creates a legislative task force to study and recommend changes in the Illinois Marriage and Dissolution of Marriage Act. The House has passed this resolution; no further action is required for this resolution to take effect. Hearings all over the state are anticipated. Passed by both chambers.
caselaw update
Civil - 2-1401 Motions/ Dissolution Of Marriage / Attorney’s Fees 1st Dist.
Engel v. Loyfman, No. 1-07-1468 (June 6, 2008) 6th div. (Mcbride) Reversed and remanded.
Because trial court misconstrued the concept of subject matter jurisdiction when it allowed former client’s motion to vacate agreed judgment for attorney’s fees because complaint was filed within 90 days of order allowing attorney to withdraw, its order must be reversed and remanded. Although motion sufficiently demonstrates basis for vacating order, on remand, court must consider whether attorney’s affidavits provide a sufficient response to client’s motion; and conduct evidentiary hearing if it does
Engel v. Loyfman, No. 1-07-1468 (June 6, 2008) 6th div. (Mcbride) Reversed and remanded.
Because trial court misconstrued the concept of subject matter jurisdiction when it allowed former client’s motion to vacate agreed judgment for attorney’s fees because complaint was filed within 90 days of order allowing attorney to withdraw, its order must be reversed and remanded. Although motion sufficiently demonstrates basis for vacating order, on remand, court must consider whether attorney’s affidavits provide a sufficient response to client’s motion; and conduct evidentiary hearing if it does
Wednesday, June 11, 2008
Illinois Order of Protection
Followup from my last post:
Recent bill:
Domestic violence orders
House Bill 5121 (Rose, R-Mahomet; Righter, R-Mattoon) requires clerks to send an order of protection to a health-care provider if the petitioner asks them to do so. If a health-care provider receives a copy of an order of protection, they are prohibited from allowing the respondent access to the records of a child who is a protected person under the order. This bill has been passed by both chambers.
Recent bill:
Domestic violence orders
House Bill 5121 (Rose, R-Mahomet; Righter, R-Mattoon) requires clerks to send an order of protection to a health-care provider if the petitioner asks them to do so. If a health-care provider receives a copy of an order of protection, they are prohibited from allowing the respondent access to the records of a child who is a protected person under the order. This bill has been passed by both chambers.
Tuesday, June 10, 2008
Illinois Order of Protection
Many divorce cases begin with one party obtaining an order of protection.
It is important to determine what remedies to look for the person filing for the order of protection.
Order-of-protection remedies available under the Illinois Domestic Violence Act (IDVA).
750 ILCS 60/101
One purpose of the statute is to "[s]upport the efforts of victims of domestic violence to avoid further abuse by promptly entering and diligently enforcing court orders which prohibit abuse and, when necessary, reduce the abuser's access to the victim and address any related issues of child custody and economic support."
The 19 remedies can give the plaintiff a significant advantage in a divorce proceeding, especially in child custody.
General remedies
Prohibiting abuse, neglect, harassment, and exploitation.
"Abuse" is vaguely defined under the IDVA as "physical abuse, harassment, intimidation of a dependent..."
"Harassment" means knowing conduct which is not necessary to accomplish a purpose that is reasonable under the circumstances; would cause a reasonable person emotional distress; and does cause emotional distress to the petitioner. Unless the presumption is rebutted by a preponderance of the evidence, the following types of conduct shall be presumed to cause emotional distress:
(i) creating a disturbance at petitioner's place of employment or school;
(ii) repeatedly telephoning petitioner's place of employment, home or residence;
(iii) repeatedly following petitioner about in a public place or places;
(iv) repeatedly keeping petitioner under surveillance by remaining present outside his or her home, school, place of employment, vehicle or other place occupied by petitioner or by peering in petitioner's windows;
(v) improperly concealing a minor child from petitioner, repeatedly threatening to improperly remove a minor child of petitioner's from the jurisdiction or from the physical care of petitioner, repeatedly threatening to conceal a minor child from petitioner, or making a single such threat following an actual or attempted improper removal or concealment, unless respondent was fleeing an incident or pattern of domestic violence; or
(vi) threatening physical force, confinement or restraint on one or more occasions.
"Neglect" is also prohibited by the IDVA.
Exclusive possession of residence. The court has power to evict one party from the home, regardless of whose name is on the title or whether it is "marital property."
The court shall balance (i) the hardships to respondent and any minor child or dependent adult in respondent's care resulting from entry of this remedy with (ii) the hardships to petitioner and any minor child or dependent adult in petitioner's care resulting from continued exposure to the risk of abuse....The balance of hardships is presumed to favor possession by petitioner unless the presumption is rebutted by a preponderance of the evidence.
Stay-away orders. If the court grants the order of protection, it can require the defendant to stay away from plaintiff or any other person protected by the order. Unlike exclusive possession, the stay-away remedy provides for no balancing of hardships. Order-of-protection forms typically let the plaintiff specify how many feet away the defendant must stay. There is no set amount of space that must be given under current statutes or case law. Innocent encounters in public locations are not a violation.
Counseling.
Personal property.
Damages from abuse. The IDVA allows plaintiffs to seek damages for actual losses suffered as a result of defendant's abuse, including lost earnings, medical expenses, etc.
Entry while intoxicated, under the influence. The IDVA can prohibit the defendant from entering or staying in the home "while the respondent is under the influence of alcohol or drugs and constitutes a threat to the safety and well-being of the petitioner and petitioner's children."
Firearm possession. The IDVA requires the defendant to turn over weapons and guns to the police to hold "if the court is satisfied that there is any danger of illegal use of firearms."
Payment of shelter services. The defendant could be ordered to pay for the costs of a shelter that provided temporary housing to the abused.
Injunctive relief. The "order of injunctive relief" section is the catch-all "other appropriate relief" section of the statute.
Animals. Pursuant to Public Act 095-0234 signed by Governor Blagojevich on August 17, 2007, effective January 1, 2008, pets are also included as part of the remedies available in orders of protection as follows:
Protection of animals.Grant the petitioner the exclusive care, custody or control of any animal owned, possessed, leased, kept, or held by either the petitioner or the respondent or a minor child residing in the residence or household of either the petitioner or the respondent and order the respondent to stay away from the animal and forbid the respondent from taking, transferring, encumbering, concealing, harming, or otherwise disposing of the animal.
Child-related remedies
Physical care and possession, temporary legal custody of minor child.
In an emergency order of protection, where there is no notice to the defendant, the court can only grant possession of the children, not custody.
Denying, restricting visitation. Under the IDVA, the court may deny or restrict visitation if the court finds that visitation presents an additional opportunity for the defendant to abuse the petitioner or other protected persons.
Child support. The IDVA allows the remedy of child support.
Removal or concealment of a minor child. This IDVA remedy is also automatic upon the service of a summons and petition or praecipe filed under the IMDMA under the dissolution action stay.
Ordering defendant to appear in court. The defendant could be ordered to appear in court either alone or with the minor child who has been wrongfully concealed from the plaintiff.
Prohibiting access to child's records. If the order of protection prohibits defendant from having contact with the minor child, school or other records of the child may also be kept from the defendant.
Order of protection hearings are usually expedited as much as possible.
It is important to determine what remedies to look for the person filing for the order of protection.
Order-of-protection remedies available under the Illinois Domestic Violence Act (IDVA).
750 ILCS 60/101
One purpose of the statute is to "[s]upport the efforts of victims of domestic violence to avoid further abuse by promptly entering and diligently enforcing court orders which prohibit abuse and, when necessary, reduce the abuser's access to the victim and address any related issues of child custody and economic support."
The 19 remedies can give the plaintiff a significant advantage in a divorce proceeding, especially in child custody.
General remedies
Prohibiting abuse, neglect, harassment, and exploitation.
"Abuse" is vaguely defined under the IDVA as "physical abuse, harassment, intimidation of a dependent..."
"Harassment" means knowing conduct which is not necessary to accomplish a purpose that is reasonable under the circumstances; would cause a reasonable person emotional distress; and does cause emotional distress to the petitioner. Unless the presumption is rebutted by a preponderance of the evidence, the following types of conduct shall be presumed to cause emotional distress:
(i) creating a disturbance at petitioner's place of employment or school;
(ii) repeatedly telephoning petitioner's place of employment, home or residence;
(iii) repeatedly following petitioner about in a public place or places;
(iv) repeatedly keeping petitioner under surveillance by remaining present outside his or her home, school, place of employment, vehicle or other place occupied by petitioner or by peering in petitioner's windows;
(v) improperly concealing a minor child from petitioner, repeatedly threatening to improperly remove a minor child of petitioner's from the jurisdiction or from the physical care of petitioner, repeatedly threatening to conceal a minor child from petitioner, or making a single such threat following an actual or attempted improper removal or concealment, unless respondent was fleeing an incident or pattern of domestic violence; or
(vi) threatening physical force, confinement or restraint on one or more occasions.
"Neglect" is also prohibited by the IDVA.
Exclusive possession of residence. The court has power to evict one party from the home, regardless of whose name is on the title or whether it is "marital property."
The court shall balance (i) the hardships to respondent and any minor child or dependent adult in respondent's care resulting from entry of this remedy with (ii) the hardships to petitioner and any minor child or dependent adult in petitioner's care resulting from continued exposure to the risk of abuse....The balance of hardships is presumed to favor possession by petitioner unless the presumption is rebutted by a preponderance of the evidence.
Stay-away orders. If the court grants the order of protection, it can require the defendant to stay away from plaintiff or any other person protected by the order. Unlike exclusive possession, the stay-away remedy provides for no balancing of hardships. Order-of-protection forms typically let the plaintiff specify how many feet away the defendant must stay. There is no set amount of space that must be given under current statutes or case law. Innocent encounters in public locations are not a violation.
Counseling.
Personal property.
Damages from abuse. The IDVA allows plaintiffs to seek damages for actual losses suffered as a result of defendant's abuse, including lost earnings, medical expenses, etc.
Entry while intoxicated, under the influence. The IDVA can prohibit the defendant from entering or staying in the home "while the respondent is under the influence of alcohol or drugs and constitutes a threat to the safety and well-being of the petitioner and petitioner's children."
Firearm possession. The IDVA requires the defendant to turn over weapons and guns to the police to hold "if the court is satisfied that there is any danger of illegal use of firearms."
Payment of shelter services. The defendant could be ordered to pay for the costs of a shelter that provided temporary housing to the abused.
Injunctive relief. The "order of injunctive relief" section is the catch-all "other appropriate relief" section of the statute.
Animals. Pursuant to Public Act 095-0234 signed by Governor Blagojevich on August 17, 2007, effective January 1, 2008, pets are also included as part of the remedies available in orders of protection as follows:
Protection of animals.Grant the petitioner the exclusive care, custody or control of any animal owned, possessed, leased, kept, or held by either the petitioner or the respondent or a minor child residing in the residence or household of either the petitioner or the respondent and order the respondent to stay away from the animal and forbid the respondent from taking, transferring, encumbering, concealing, harming, or otherwise disposing of the animal.
Child-related remedies
Physical care and possession, temporary legal custody of minor child.
In an emergency order of protection, where there is no notice to the defendant, the court can only grant possession of the children, not custody.
Denying, restricting visitation. Under the IDVA, the court may deny or restrict visitation if the court finds that visitation presents an additional opportunity for the defendant to abuse the petitioner or other protected persons.
Child support. The IDVA allows the remedy of child support.
Removal or concealment of a minor child. This IDVA remedy is also automatic upon the service of a summons and petition or praecipe filed under the IMDMA under the dissolution action stay.
Ordering defendant to appear in court. The defendant could be ordered to appear in court either alone or with the minor child who has been wrongfully concealed from the plaintiff.
Prohibiting access to child's records. If the order of protection prohibits defendant from having contact with the minor child, school or other records of the child may also be kept from the defendant.
Order of protection hearings are usually expedited as much as possible.
Thursday, June 5, 2008
Marital settlement agreements - retirement & disability benefits
Dissolution Of Marriage/ Marital Settlement Agreements / Pensions 3rd Dist.
In re Marriage of Schurtz, No. 3-07-0345 (May 28, 2007) Peoria County (Lytton) Affirmed.
Trial court did not err when it ordered 62 yr. old former husband to pay a portion of his disability pension over to his former wife based on provision of Marital Settlement Agreement allocating a portion of his retirement pension to her. Because former husband was entitled to retirement benefits but chose to receive disability benefits instead, the wife is entitled to what she would receive from his retirement benefits. Further, trial court did not abuse its discretion when it refused wife's petition for attorney's fees and interest on past due benefits; because husband had a good faith argument that she was not entitled to receive any portion of his disability.
In re Marriage of Schurtz, No. 3-07-0345 (May 28, 2007) Peoria County (Lytton) Affirmed.
Trial court did not err when it ordered 62 yr. old former husband to pay a portion of his disability pension over to his former wife based on provision of Marital Settlement Agreement allocating a portion of his retirement pension to her. Because former husband was entitled to retirement benefits but chose to receive disability benefits instead, the wife is entitled to what she would receive from his retirement benefits. Further, trial court did not abuse its discretion when it refused wife's petition for attorney's fees and interest on past due benefits; because husband had a good faith argument that she was not entitled to receive any portion of his disability.
Wednesday, June 4, 2008
No-fault divorce separation period
Clients also ask how long must they be separated before they can get divorced.
Normally, there is a two-year separation period, but if the spouses have lived separate and apart for a continuous period of not less than 6 months prior to the case, the 2 year time period can be waived if both parties agree in writing.
Thanks
Terry
Normally, there is a two-year separation period, but if the spouses have lived separate and apart for a continuous period of not less than 6 months prior to the case, the 2 year time period can be waived if both parties agree in writing.
Thanks
Terry
Can I file for divorce if I don't know where my spouse is?
Can I file for divorce if I don't know where my spouse is?
Yes. You can file for divorce if you do not know where your spouse is.
You must show the court that you have exhausted all reasonable means to find your spouse. Your spouse must have been gone for over a year as well. Usually, a process server is involved. They will perform a skip trace to see if they can locate the spouse. If that comes up empty, the petitioner will have to send the notice of filing to the last known address and to the last known place of work. If that fails, then the court will have the notice published in the paper. If there is no response in the required amount of time (per local/state law) then the court will allow one party to obtain a default divorce without the other spouse.
Yes. You can file for divorce if you do not know where your spouse is.
You must show the court that you have exhausted all reasonable means to find your spouse. Your spouse must have been gone for over a year as well. Usually, a process server is involved. They will perform a skip trace to see if they can locate the spouse. If that comes up empty, the petitioner will have to send the notice of filing to the last known address and to the last known place of work. If that fails, then the court will have the notice published in the paper. If there is no response in the required amount of time (per local/state law) then the court will allow one party to obtain a default divorce without the other spouse.
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